SECOND AMENDMENT TO AGREEMENT AND PLAN OF MERGER
This SECOND AMENDMENT TO AGREEMENT AND PLAN OF MERGER (the
"Amendment") is made and entered into effective as of January 3, 2001 by and
among EBIZ ENTERPRISES, INC., a Nevada corporation ("EBIZ"), XXXXX BUSINESS
SYSTEMS, INC., a Texas corporation ("JBSI"), and JBSI ACQUISITION, INC., a Texas
corporation and a wholly-owned subsidiary of EBIZ ("Merger Sub"). This Amendment
is entered into in connection with the Agreement and Plan of Merger entered into
as of the 17th day of November, 2000, as amended by the First Amendment to
Agreement and Plan of Merger dated December 22, 2000, by and among EBIZ, JBSI
and Merger Sub (the "Merger Agreement"). All terms used, but not otherwise
defined, herein shall have the meanings ascribed to such terms in the Merger
Agreement
RECITALS
A. Section 3.2 of the Merger Agreement provides representations
and warranties by JBSI regarding conflicts, breaches, violations
and defaults.
B. The parties hereto wish to amend the Merger Agreement to except certain
JBSI Material Contracts from the JBSI representations and warranties in
Section 3.2 of the Merger Agreement.
AGREEMENT
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. Section 3.2 of the Merger Agreement is hereby amended to read
in its entirety as follows:
3.2 No Conflict, Breach or Default. The execution and
delivery of this Agreement and the performance by JBSI of the terms
hereof do not (a) assuming the approval of this Agreement and the
transactions contemplated hereby by JBSI's stockholders, conflict with
or result in a violation of the Articles of Incorporation or Bylaws or
other organizational documents of JBSI or any JBSI Subsidiary, (b)
violate any order, writ, judgment or decree to which JBSI or any JBSI
Subsidiary is a party or is subject, or (c) except for the JBSI
Material Contracts listed in items B. 10, 12, 14, 15, 16, 17 and 19 of
Schedule 3.14 hereto, conflict with or result in a violation of, or
result in a breach of any provision of, or constitute a default (or an
event which, with notice or lapse of time or both, would constitute a
default) under, or result in the termination of, or accelerate the
performance required by, or result in the creation of any lien,
security interest, charge or encumbrance upon any of the properties or
assets of JBSI or any JBSI Subsidiary under any of the terms,
conditions or provisions of any note, bond, mortgage, indenture, deed
of trust, lease, license, credit facility, financing agreement, or
other agreement or other instrument or obligation to which JBSI or any
JBSI Subsidiary is bound or by which JBSI or any JBSI Subsidiary or any
of its properties or assets may be bound except, in the case of this
clause (c), where such conflict, violation, default, termination,
cancellation or acceleration would not, individually or in the
aggregate, have a Material Adverse Effect on JBSI.
2. Except as otherwise amended hereby, the Merger Agreement
remains in full force and effect.
3. This Amendment may be executed in one or more counterparts and by
original or facsimile signature, each of which will constitute an original and
all of which together will constitute one and the same instrument.
[Signature page follows.]
IN WITNESS WHEREOF, this Amendment has been executed by each
of the parties as of the day and year first above written.
EBIZ:
EBIZ ENTERPRISES, INC.
By:/s/ Xxxxx Xxxx
Xxxxx Xxxx
Chief Executive Officer
MERGER SUB:
JBSI ACQUISITION, INC.
By:/s/ Xxxxx Xxxx
Xxxxx Xxxx, President
JBSI:
XXXXX BUSINESS SYSTEMS, INC.
By:/s/ Xxxxx Xxxxxxx
Xxxxx Xxxxxxx, President
